The judicial mess relating to the question of legality of online gambling is growing. The District Court of Munich has recently announced in its press release that players, who participate in the unlicensed online gambling in Germany, would render themselves liable to the criminal prosecution. Thereby the Court referred to its judgment of September 26, 2014 (Case No. 1115 Cs 254 Js 176411/13). However, this judgment will not withstand the appeal to the Regional Court of Munich:
I. The regulatory situation in gambling industry is unclear, the criminal one – more than ever:
This is remarkable, because for several years legislative, administrative and judicial authorities have been trying to bring legal clarity to the legal matters of gambling law as part of a special administrative law. Outside of the District Court of Munich they have been discussing for more than 10 years, whether gambling in Germany may only be organized by the state or also by private parties over the Internet. Courts and legal experts in Germany and Europe disagree on the conformity of the German restrictive gambling regulation with the EU law. In 2006 the Federal Constitutional Court of Germany declared the German Inter-State Treaty on Lotteries of 2004 and its monopoly system to be unconstitutional. In 2010 the European Court of Justice (indirectly) declared the German Inter-State Treaty on Gambling of 2008 to be contrary to the EU Law and thus inapplicable. In the meantime, the German Inter-State Treaty on Gambling of 2012 is valid, but the applicability of its regulations is even more unjustifiable than of its previous versions (about the dispute, for example: Streinz / Liesching / Hambach, Glücks- und Gewinnspielrecht in den Medien, Einführung, Rn. 1 ff.).
In contrast, the District Court of Munich nonchalantly suggests, that everyone could find out the criminality of online gambling “with the simplest research in the Internet” (Recital 29), and that there had been the legal clarity on the gambling regulation in Germany since the adoption of the German Inter-State Treaty on Gambling of 2008. Only before 2008 “there had been, in fact, an unclear and inconsistent regulation, which was harmonized by the Inter-State Treaties on January 1, 2008 and further by the new Inter-State Treaty of 2012” (Recital 35).
The District Court of Munich itself confirms the incorrectness of such point of view in another paragraph. So, Recital 28 of the Judgment states: “sports betting monopoly of the state was subsequently repealed by the European Court of Justice”. Here, the Court refers to the Inter-State Treaty on Gambling of 2008 and to the Judgments of the ECJ of September 8, 2010 (Case No. C-46/08 – Carmen Media; et al), where the ECJ put it straight, that the GlüStV 2008 (regarding its monopoly regulations) had been inconsistent with the European Law. Insofar it was simply erroneous of the District Court of Munich to suggest that the situation in the gambling law had been clarified in Germany since 2008.
II. Foreign licenses lead to the exclusion of the criminal liability.
There are obvious reasons why an online casino player has never been sentenced in Germany before, despite there are millions of participants. So, famous penologists come to the clear conclusion that gambling licenses in other countries may be sufficient to exclude the criminal liability:
It is stated in one of the most important commentaries on the Criminal Law (in Germany) (Schönke/Schröder/Heine/Hecker, § 284 StGB, Recital 30) that already “according to the wording of Para 284 Section I, no German license shall be necessarily available”. Moreover, the criminal liability can also be excluded, if the provider holds a license in another country, where the license requirements are comparably high, as they would have been according to the German regulations. The penologists are talking here about the elimination of the “criminal energy” due to the existing EU license and thus support the providers and their customers.
So, a few years ago the District Court of Bayreuth in its unpublished judgment had correctly acquitted an online poker player of such accusation, which was even confirmed in the second instance by the Regional Court. The District Court of Munich, however, found that there was no “official German license” and suggested: „On the other hand, a British license is not sufficient to make gambling “legal” (compare with Recital 26). Instead of this suggestion, the Court should have examined, whether the British license of the provider, where the convict played, actually meets the requirements of consumer protection in Germany or not, and whether the supervisory authority in Gibraltar actually controls the provider less reliable than a comparable German authority would have controlled. For example, the Court did not examine, whether or not the provider had applied for a German license within the concession proceeding for sports betting or even held an online casino license of Schleswig-Holstein.
This did not happen. Instead, the District Court of Munich supports the necessity and justification of criminal liability by polemical suggestions instead of legal facts, such as “the danger that the single player (…) will be stripped of his money (…) by dubious operators”.
III. The principle of legal certainty and in dubio pro reo principle forbid the conviction.
The number of German online casino players is counted in millions. According to a Spiegel report, already in 2013, they placed in Internet casinos over 17 billion Euros in bets, with an increasing tendency.
Due to the legal uncertainties outlined above, up to this case none of millions of German online players has been convicted of participation in illegal gambling. This can be found out with a simple Internet research.
Neither provider, nor players recognize, what is now “allowed” and what not. It is, however, evident in criminal law, because the principle of legal certainty applies: the requirements for the criminal liability and its follow-up consequences shall be specified so precisely, that the norm addressee could anticipate, whether his conduct is punishable and, at least, whether there is a risk of a punishment.
And the District Court of Munich itself points out, that there is no certainty regarding criminal liability of participation in the online Black Jack over the Internet, as it states in Recital 27, “that the participation in Internet casinos with games of chance is punishable at least under the formal consideration”.
Thus, the requirement of a “formal” consideration implies, that there are also different approaches, according to which the criminal liability is excluded. The court misjudges exactly these points of view (question of the current inconsistency of German regulations on gambling with EU Law; question of recognition of foreign licenses). Insofar, the court at least should have had doubts on the accused’s guilt and should have not imposed on him the own “formal consideration” of the legal situation.
The statements of the Court in Recital 30 also set alert. According to it, “even a layman knows the difference between sports betting and a game of chance like Poker or Black Jack”. This statement shows, that the Court itself is not aware, that sports betting is qualified in Germany as a “game of chance”.
IV. Perspectives.
Numerous online providers from Gibraltar and Malta have received from the Ministry of Interior of Schleswig-Holstein licenses for offering online casino. Furthermore, they fulfilled the minimum requirements for the sports betting concession, where- by they proved their reliability. Even if one should reject the impunity of providers with a strongly regulated Gibraltar License, the “in dubio pro reo” principle, which stringently leads to the acquittal, should at least apply to the players. Therefore, the Regional Court will need to correct the judgment of the District Court of Munich in favor of the player.
Source: TIME Law News 1/2015 (www.timelaw.de) Hambach & Hambach Law Firm